Answering the Religious Liberty Claim to Abortion

Despite the end of Roe v. Wade, a new possibility of finding a constitutional right to abortion has appeared – however implausible it might seem – in the claims now advanced by pro-abortion legal analysts that the First Amendment mandates legal abortion.

The James Wilson Institute presented a review of these claims by Francis Beckwith, Professor of Philosophy and Church/State Studies at Baylor University in its Anchoring Truths podcast on Oct. 22, 2024. He endeavored to explain what the challenges to pro-life laws are, and how to respond to them. Garrett Snedeker, Deputy Director of JWI noted in introducing the podcast that laws motivated by belief that “prenatal life is sacred” are held to violate the Establishment Clause of the First Amendment, and also violate the Free Exercise Clause in forbidding women whose religious beliefs “either permit or require them to have abortions from doing so.”

The Establishment Clause and Strict Separationist Arguments

Beckwith first dealt with the Establishment Clause claims. He cited Loren Jacobson, Associate Professor of Law at the University of North Texas, Dallas, who maintains that pre-viability pro-life laws are motivated by “the view that a fetus – sometimes from the moment of conception – is a human, whose interests are at least equivalent to those of the person carrying it … is inherently based on the belief of particular denominations.” This is because this belief “is not universally or even generally held.” She maintains that “the idea of when life or personhood begins is largely influenced by religious views.” She quoted in the her article various pro-life advocates offering religious justifications for the laws. She therefore concludes that laws that restrict or ban abortions are “clearly religiously motivated.” She also maintains that the science of embryology has not substantially changed since the rendering of the Roe vs. Wade decision. Any pro-life arguments advanced against abortion are “a religious, not a scientific belief.”

Beckwith advanced several arguments against this. The first problem is that science “cannot answer the moral question of abortion.” Anti-abortion advocates have often used science to prove that unborn children are indeed human beings. But knowledgeable pro-abortion advocates concede that unborn children are human beings. The dispute is over when a human being gains “moral status.” This cannot be answered by science. A philosophical position is being advanced in favor of abortion, saying that at least at some stage in pregnancy, the unborn child lacks the characteristics necessary for personhood. The conflict is a philosophical dispute over “what it means to be a human being.”

Secondly, Beckwith said, “religious motives are irrelevant,” since policy is the same regardless of motivation. Under strict separationist reasoning, a law banning abortion would be constitutional in a state where no religious justification was advanced, but not where religious justifications were given for its passage, even though the exact same wording was used in the two laws. A third problem is that scholars maintaining an Establishment Clause argument against pro-life laws ignore the substantial secular justifications that are given for the protection of unborn life. These justifications for according moral status to unborn humans are nearly identical to those of religious pro-life persons, he said.

Fourthly, a religiously motivated law is not necessarily “unjust or unconstitutional.” He noted Martin Luther King’s observation that the early Christians ended such practices as gladiatorial contests and infanticide (which were morally acceptable at the time), and pro-abortion legal scholar Lawrence Tribe’s statement that the exclusion of pro-life voices from the public square “is contrary to the nation’s tradition of democratic participation.” Beckwith further noted that the ideas of the abolitionists and civil rights activists often arose and were justified in religious terms. Yet nearly everyone accepts those ideas today. This writer would observe in this connection that the equality of human beings is not at all obvious from science or secular observation. Some persons are great scientists or artists, others or deficient in these areas. Further, the Kennedy v. Bremerton School District case (2022) would seem to have significantly moved American law away from strict separationism.

Fifthly, Beckwith said that objections to religious opposition to abortion ignore how deeply religious arguments are shaped by secular science and philosophy. It was only after nineteenth century science discovered the human ovum and how conception occurs that the Catholic Church’s current doctrine against abortion was precisely formed. Such doctrines as human equality and the prohibition against murder are indeed religious doctrines, but applying them to current scientific knowledge yields the current Catholic (and other Christian) position that killing a human organism after conception is murder. Further, Beckwith said that those secular thinkers advocating for a right to abortion did not begin to develop their positions until the mid-twentieth century, in particular the 1970s, long after science had established the humanity of zygotes and embryos. “So, it’s probably more accurate to say that it’s one’s philosophical or intellectual predilection rather than the science or the theology alone that is primarily guiding pro-life and pro-choice scholars and advocates.”

Free Exercise Claims to Abortion

Beckwith then moved on to free exercise claims to abortion. Here he focused on the Supreme Court’s religious liberty jurisprudence since 1990, i.e., since the Employment Division v. Smith decision that restricted claims to religious liberty under the First Amendment to laws that specifically target religious activity. He identified seven rules of jurisprudence regarding religious liberty in the Smith era:

1. Neutral, generally applicable law prevails over religious liberty (Smith and other decisions)
2. Law targeting religious activity violates free exercise (Smith)
3. Neutral, generally applicable law applied with animus violates free exercise (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018)
4. Neutral, generally applicable law applied to expressive activity likely violates free speech (303 Creative v. Elenis, 2023)
5. Law presenting as neutral and generally applicable which is crafted to burden a particular religious activity, but not comparable secular activity violates free exercise (Church of Lukumi Babalu Aye v. City of Hialeah, 1993)
6. Law with a mechanism for considering secular exemptions, but not religious exemptions is not generally applicable (Flores v. City of Philadelphia, 2021)
7. Law that treats a secular activity more favorably than comparable religious activity in relation to the government’s interest in the law is not neutral or generally applicable, Tandon v. Newsom, 2021)  

It was in this legal environment (not including 303 Creative before 2023) that a number of states, after the issuing of the Dobbs v. Jackson Women’s Health Organization decision (2022) which overturned the Roe v. Wade decision, either passed laws banning abortion, or had so-called trigger laws (which banned abortion in case Roe v. Wade was overturned). Some states ban abortion from conception, others at later points in pregnancy. All include some exemptions (such as rape, incest, medical emergency, the life of the mother, fetal deformity, etc.). None of the first six rules are violated by such laws, Beckwith said. It is from the seventh that a religious liberty claim to abortion is made.

To use this rule, it must be shown that “that procuring an abortion is a procedure that some religious groups or religions require or allow their adherents to undergo in certain circumstances.” It is claimed that several different faiths, and particularly “certain forms of Judaism … allow or even mandate their female adherents to undergo abortion under certain circumstances.” It is also claimed that “the logic of state RFRAs” would mandate a religious liberty exemption for abortions.

Religious Claims Compared to Secular Exemptions to Abortion Bans

From the above reasoning, it is claimed that the existence of the secular exemptions mentioned in state laws banning abortion while allowing no religious exemptions shows that these laws are “not only not neutral and generally applicable,” but treat “secular activities more favorably than comparable religious activities.”

Against this type of reasoning, it can be argued that existing exemptions for the life of the mother or medical emergency advance the cause of the sanctity of life, which is the justification for abortion bans. There are cases, he said, where doctors need leeway in emergency situations that the law cannot foresee. Additionally, pre-Roe abortion bans commonly had such exemptions. But this defense of abortion bans with exemptions which do not include a religious exemption might not hold against comparisons involving rape or incest exceptions, since these cannot be held necessary to save life. For these exemptions, the question would be are those secular exemptions comparable to the claimed religious exemptions.

While answering this challenge this might seem difficult, Beckwith pointed out that the pro-abortion religious liberty claim appeals to the Tandon decision, noted above. That decision said that California had to show that religious gatherings were more dangerous in the spread of coronavirus than many comparable secular activities. Since this has not been established in court, the court found in favor of the religious plaintiffs, and ruled that California had to allow religious gatherings of more than three families in private residences.

Here it is important that achieving the state’s objective (preventing spread of coronavirus) was allowed bear on whether the religious exemption was granted. Since rape, incest, or fetal deformity claims to abortion are rare, and since abortion religious liberty advocates claim there is religious teaching that some abortions not covered by the sought religious exemption “may advance familial, economic, social, or emotional well-being,” granting a religious liberty exemption to abortion would result in “substantially increasing the number of abortions,” thus defeating the state’s sanctity of life objective. Beckwith said that abortion religious liberty advocates advance arguments that “are always tightly tethered to interests like familial interests, economic interests, and emotional well-being that in and of themselves are not exclusively religious.” This would effectively overturn the pro-life laws. It is evident then, Beckwith believes, that the religious liberty claims to abortion as currently advanced should not prevail under current jurisprudence.

Conclusion

This writer would point to what has been said in earlier articles. Questions of religion and conscience should have the highest priority in law, because they touch on our obligation to what is ultimately real, as we understand it. One is always obligated to follow conscience, since it is always wrong to do what one understands to be wrong. But there should be a crucial distinction between actions taken and actions declined. It may be necessary to restrict religious activity, as the Supreme Court declared in the Reynolds v. United States decision (1878), ruling against a religious duty claim to Mormon polygamy (and citing religious liberty to human sacrifice as something intolerable). On the other hand, actions against religious precepts, and thus against conscience ought never to be required, as Christopher Tollefsen argued more than a decade ago.

But abortion is clearly an action taken; indeed it is the taking of a human life. The technical arguments Beckwith points to may be the ones to use and may win in court. But the only moral (and popularly satisfying) reason is that the Constitution intended to protect human beings when it protects “persons.” There cannot be a finally arbitrary standard for identifying “persons,” set by the government, but a natural one, determined by an individual’s status as a human being. Such a legal finding may be unlikely today, as it would recognize a constitutional right to life, and ban abortion nationally. But it is the real answer to the claimed right of abortion, which is finally a raw exercise of self-will.